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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
Sheel Nagu, Vinay Saraf, JJ.
Sudeepto Saha S/o Shri Prasad Kumar Saha - Appellant
Vs.
Moumita Saha W/o Sudeepto Saha - Respondent
First Appeal No. 896 of 2014
Decided On : 03-01-2024
(1) Hindu Marriage Act, 1955 -- S. 13 -- desertion -- appellant/husband himself, after marriage, reached Bhopal on 23.7.2006 and thereafter left for USA on 28.7.2006 -- allegation of desertion by respondent/wife cannot be accepted because wife was left at matrimonial home by appellant and he had not made any arrangement for taking her to USA -- according to report lodged by respondent, she was subjected to cruelty by appellant and his parents and they tried to kill her therefore she left matrimonial home -- held -- cannot be accepted that respondent/wife deserted appellant/husband without any reason. [Paras 9 & 10]
(2) Hindu Marriage Act, 1955 -- S. 13 -- extra-marital affair -- allegation that wife was having boyfriend, was forced to marry appellant and she requested appellant to hand over her custody to her boyfriend -- cannot be ground for decree of divorce u/s. 13 -- not case of appellant that respondent/wife made physical relation with any person than husband -- by simply levelling allegation that respondent/wife was having boyfriend, no decree of divorce can be granted. [Para 11]
(3) Hindu Marriage Act, 1955 -- S.13 -- divorce on basis of settlement -- on basis of settlement, decree of divorce can be passed only in when both parties are present before Court, they confirm settlement and jointly pray for decree of divorce by mutual consent -- though appellant submitted that he entered into settlement with respondent and paid settlement amount in full, but neither petition u/s. 13B was filed nor respondent was present before Court to confirm factum of settlement -- trial Court has not committed any error in refusing to grant decree of divorce on ground of settlement. [Para 14]
(4) Hindu Marriage Act, 1955 -- S. 13 -- irretrievable breakdown of marriage -- S. 13 does not provide ground of irretrievable breakdown of marriage -- no decree of divorce can be granted by accepting argument that marriage has been broken down irretrievably. [Para 15]
(5) Hindu Marriage Act, 1955 -- S. 13 -- mental cruelty -- denial of cohabitation -- non-consummation of marriage and denial of physical intimacy amounts to mental cruelty -- allegation of appellant/husband remained unrebutted as respondent/wife did not appear before trial Court and did not file reply to divorce petition -- fact pleaded and stated in chief-examination -- can be accepted as proved in absence of rebuttal -- allegation of mental cruelty on account of denial of physical intimacy by respondent/wife proved -- non-appearance of respondent-wife in the case filed by appellant/husband for divorce itself amount to cruelty -- trial Court wrongly held that failure on part of wife to consummate marriage cannot be ground for divorce. (2007) 4 SCC 511 and (2017) 9 SCC 632 followed. [Paras 17 & 20]
(6) Hindu Marriage Act, 1955 -- S. 13 -- mental cruelty -- denial of cohabitation -- unilateral refusal to have sexual intercourse for considerable period without any physical incapacity or valid reason -- can amount to mental cruelty. [Para 19]
(7) Hindu Marriage Act, 1955 -- S. 13 -- mental cruelty -- there can never be any straightjacket formula or fixed parameters for determining mental cruelty in matrimonial matters -- prudent and appropriate way to adjudicate case would be to evaluate it on its peculiar facts and circumstances while taking relevant factors in consideration. [Para 21]
(8) Hindu Marriage Act, 1955 -- S. 13(1)(ia) -- mental cruelty -- denial of cohabitation -- appellant/husband solemnized marriage -- it was already decided that he will leave India in short period -- during this period, appellant was hopeful to consummate marriage but same was denied by respondent/wife -- said act of respondent certainly amounts to mental cruelty -- ground of divorce enumerated in clause (ia) u/s. 13(1) made out -- appellant entitled for decree of divorce. [Para 21]
¼1½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & vfHkR;tu & Lo;a vihykFkhZ@ifr] fookgksijkar] 23-7-2006 dks Hkksiky igq¡pk rFkk rRi'pkr~ 28-7-2006 dks ;w,l, pyk x;k & çR;fFkZuh@iRuh }kjk vfHkR;tu dk vfHkdFku Lohdkj ugha fd;k tk ldrk D;ksafd iRuh dks vihykFkhZ }kjk gh nkairR;x`g esa NksM+k x;k Fkk rFkk mlus iRuh dks ;w,l, ys tkus dh dksbZ O;oLFkk ugha dh Fkh & çR;fFkZuh }kjk nkf[ky dh xbZ fjiksVZ ds vuqlkj] vihykFkhZ vkSj mlds ekrk@firk }kjk mlls Øwjrk dh xbZ Fkh rFkk mUgksaus mldh gR;k djus dk ç;Ru fd;k Fkk blfy, mlus nkEiR;x`g NksM+k & vfHkfu/kkZfjr & ;g Lohdkj ugha fd;k tk ldrk fd çR;fFkZuh@iRuh us fcuk fdlh dkj.k vihykFkhZ@ifr dk vfHkR;kx fd;kA ¼iSjk 9 ,oa 10½
¼2½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & fookgsrj çseçlax & vfHkdFku fd iRuh dk çseh Fkk] cyiwoZd mls vihykFkhZ ls fookg djus ds fy, ckè; fd;k x;k rFkk mlus vihykFkhZ ls vuqjks/k fd;k fd og mldh vfHkj{kk mlds çseh dks lkSai ns & /kkjk 13 ds v/khu fookg@foPNsn dh fMØh ds fy, vkèkkj ugha gks ldrk & vihykFkhZ dk ;g i{kdFku ugha fd çR;fFkZZuh@iRuh us ifr ds vfrfjä vU; fdlh O;fä ls 'kkjhfjd laca/k cuk, & ek= bl vfHkdFku ij fd çR;fFkZuh@iRuh dk çseh Fkk] fookg&foPNsn dh fMØh çnku ugha dh tk ldrhA ¼iSjk 11½
¼3½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & le>kSrs ds vk/kkj ij fookg&foPNsn & le>kSrs ds vk/kkj ij fookg&foPNsn dh fMØh rc gh ikfjr dh tk ldrh gS tc nksuksa i{kdkj U;k;ky; ds le{k mifLFkr gksa] le>kSrs dh iqf"V djsa rFkk ikjLifjd lEefr ls fookg&foPNsn dh fMØh dh la;qä çkFkZuk djsa & ;|fi vihykFkhZ us fuosnu fd;k fd mldk çR;fFkZuh ls le>kSrk gqvk rFkk mlus le>kSrs dh iwjh jde dk lank; fd;k] rFkkfi u rks /kkjk 13[k ds v/khu vthZ çLrqr dh xbZ] u le>kSrs ds rF; dh iqf"V djus ds fy, çR;fFkZuh U;k;ky; ds le{k mifLFkr gh Fkh & fopkj.k U;k;ky; us le>kSrs ds vk/kkj ij fookg&foPNsn dh fMØh çnku djus ls bUdkj djus esa dksbZ xyrh ugha dhA ¼iSjk 14½
¼4½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & fookg dk vlq/kk;Z fo?kVu & /kkjk 13 esa fookg ds vlq/kk;Z fo?kVu dk vk/kkj micaf/kr ugha & ;g rdZ Lohdkj dj fookg&foPNsn dh fMØh çnku ugha dh tk ldrh fd fookg dk vlqèkk;Z fo?kVu gks x;k gSA ¼iSjk 15½
¼5½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & ekufld Øwjrk & lgokl oapu & fookgksÙkj laHkksx ugha gksuk rFkk 'kkjhfjd varjaxrk ls bUdkj ekufld Øwjrk dh dksfV esa vkrk gS & vihykFkhZ@ifr dk vfHkdFku v[kafMr jgk D;ksafd çR;fFkZuh@iRuh fopkj.k U;k;ky; ds le{k mifLFkr ugha gqbZ vkSj mlus fookg&foPNsn vthZ dk mÙkj çLrqr ugha fd;k & bl rF; dk vfHkokd~ fd;k x;k rFkk eq[; ijh{kk esa dFku fd;k x;k & çR;k[;ku ds vHkko esa lkfcr ekuk tk ldrk gS & çR;fFkZuh@iRuh }kjk 'kkjhfjd varjaxrk ls oafpr fd, tkus ds dkj.k ekufld Øwjrk dk vfHkdFku lkfcr & vihykFkhZ@ifr }kjk fookg&foPNsn ds fy, çLrqr fd, x, çdj.k esa çR;fFkZuhZ & iRuh dh vuqilatkfr Lo;eso Øwjrk dh dksfV esa & fopkj.k U;k;ky; us xyr vfHkfu/kkZfjr fd;k fd iRuh dh vksj ls fookgksÙkj laHkksx ugha fd;k tkuk fookg&foPNsn dk vk/kkj ugha gks ldrkA ¼2007½ 4 ,llhlh 511 rFkk ¼2017½ 9 ,llhlh 632 vuqlfjrA ¼iSjk 17 ,oa 20½
¼6½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & ekufld Øwjrk & lgokl oapu & fdlh nSfgd vleFkZrk vFkok fof/kekU; dkj.k ds fcuk] yach vof/k rd eSFkqu djus ls ,di{kh; bUdkj & ekufld Øwjrk dh dksfV esa vk ldrk gSA ¼iSjk 19½
¼7½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & ekufld Øwjrk & nkEiR; ekeyksa esa ekufld Øwjrk vo/kkfjr djus ds fy, dHkh Hkh dksbZ vifjorZuh; lw= vFkok fu;r ekunaM ugha gks ldrs & ekeys dk U;k;fu.kZ;u djus dk çKkoku vkSj leqfpr ekxZ] lqlaxr dkjdksa ij fopkj djrs gq, mldk ewY;kadu mlds fof'k"V rF;ksa vkSj ifjfLFkfr;ksa ij djus dk gksxkA ¼iSjk 21½
¼8½ fganw fookg vf/kfu;e] 1955 & /kkjk 13¼1½ ¼1d½ & ekufld Øwjrk
& lgokl oapu & vihykFkhZ@ifr us fookg fd;k & ;g iwoZ ls fofuf'pr Fkk fd og vYikof/k esa Hkkjr ls pyk tk,xk & bl vof/k ds nkSjku] vihykFkhZ fookgksÙkj laHkksx ds çfr vk'kkoku Fkk ijarq çR;fFkZuh@iRuh }kjk mlls bUdkj fd;k x;k & çR;fFkZuh dk mä —R; fuf'pr gh ekufld Øwjrk dh dksfV esa vkrk gS & èkkjk 13¼1½ ds v/khu [kaM ¼1d½ esa ifjxf.kr fookg&foPNsn dk vk/kkj fl) & vihykFkhZ fookg&foPNsn dh fMØh dk gdnkjA ¼iSjk 21½
JUDGMENT :
The appellant, husband has preferred the present appeal under Section 28 of the Hindu Marriage Act, 1955 (herein after referred to as Act, 1955), challenging the judgment and decree dated 3.11.2014 passed by the XIVth Additional District Judge, Bhopal in R.C.S. No.11/20214 whereby the petition filed by the appellant for grant of decree of divorce was dismissed.
2. The notices of the present appeal were issued to the respondent by various modes and ultimately, the notices of the present appeal was ordered to be published in two newspapers having wide circulation in the area where the respondent resides, one in vernacular language and other in English Language vide order dated 7.7.2023 and the notices were published in newspaper, The Eco Of India, Kolkata on July 14, 2023 and in newspaper- Arthik Lipie (Bengali), Kolkata on July 14, 2023. Despite the publication of notices in two newspapers, no one appeared on behalf of the respondents on 11.9.2023, 3.10.2023, 10.10.2023, 31.10.2023, 2.1.2024 and on 3.1.2024 and consequently the matter is heard today finally in the absence of respondent.
3. The appellant filed an application under Section 13 of the Hindu Marriage Act for grant of decree of divorce in the court of XIVth Additional Sessions Judge, Bhopal on 25.3.2014 stating that marriage was solemnized on 12.7.2006 at Village Dasaghra P.S. Dhaniya Khali District Hoogli, West Bengal as per Hindu Rights and Rituals. According to the appellant, after marriage the respondent denied cohabitation with the appellant and there was no consunmation due to the denial of the respondent. It is alleged in the petition that the respondent disclosed to the appellant that her parents and relatives forced her to marry with appellant whereas she was having love affair with her boyfriend namely, Pintu Das and she requested appellant to hand over her custody to said Pintu Das. Thereafter, they came to Bhopal at their matrimonial house but there also she denied cohabitation and ultimately the appellant left Bhopal for USA on 28.7.2006 and during this period, the marriage was not consummated.
4. According to the appellant, the respondent threatened him through e-mail that she will cut her vein and commit suicide. The respondent left the matrimonial home in the month of September, 2006 and thereafter never returned.
5. The appellant further stated in the petition that the respondent lodged a false complaint before the National Commission for Women against the parents of the appellant and lodged FIR at P.S. Dhaniya Khali District Hoogli which was registered as Crime No.17/2013 on 18.2.2013 against the appellant and his parents under Section 498-A/406 of the IPC wherein the respondent alleged that at the time of her marriage, her father gave cash of Rs.3,00,000/- with gold and silver ornaments, costly sarees, utensils etc. to the appellant and his parents to fulfill their demand of dowry and even after marriage when she was living at Bhopal further Rs.75,000/- cash was given by her father to parents of appellant but she was subjected to harassment, physically and mentally tortured by her husband, father-in-law and mother-in-law and they tried to strangulate her with the help of saree and when they failed in the same, on 29.9.2006, they put kerosene oil over her and tried to lit fire but somehow she managed to escape with the help of local neighbors and reached her parental home.
6. It is further stated in the petition that due to the false report lodged by the respondent, parents of the appellant remained in custody for almost 23 days and in this way respondent has treated the appellant and his parents with cruelty and deserted the appellant without any reason. It was also stated in the petition that the respondent lodged a report at P.S. Shahpura, Bhopal also. Thereafter in the settlement the respondent received Rs.10,00,000/-from the father of the appellant and signed the petition for divorce by mutual consent but later on denied to submit the same
The main legal point established is that prolonged separation, false accusations, and reluctance for sexual relations can constitute cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
The judgment establishes that mental cruelty and irretrievable breakdown of marriage can justify the dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
The main legal point established in the judgment is that the grounds of cruelty and desertion, as provided under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955, were proven by the responden....
The main legal point established in the judgment is that the essence of marriage lies in cohabitation and conjugal relationship, and long periods of continuous separation and filing of false complain....
False allegations and harassment by a spouse can result in mental cruelty, justifying divorce under the Hindu Marriage Act.
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